Retaliation

Retaliation

Retaliation historically refers to a legal provision that punishes the perpetrator of physical injury, whether committed as a deliberate act or through negligence, in exact conformity to the type and amount of damage that was inflicted. In a broader sense, retaliation refers to a system of justice in which the measure of payback for harms done (not just physical harms) is stated in law and recognized as equivalent punishment or compensation. In some modern contexts, retaliation for inflicting injury, quite broadly conceived, continues in use but with an extended application.

First attested in the laws of Hammurabi from ancient Babylonia c. 1750 BCE, the law of retaliation is undoubtedly best known in the form of the biblical injunction “an eye for an eye, a tooth for a tooth” (Exod. 21:23–25; similarly, Lev. 24:17–21). This provision is also known in Roman legal terminology as lex talionis (Latin talion is at the root of English “retaliation”), although Roman law (Table VIII. 2, c. 450 BCE) permitted pecuniary compensation in the place of literal retaliation. It has been argued that compensation as an alternative means of satisfaction reflects an evolution of customary practices that dealt with the inadequacy of literal retaliation, namely, the potential to increase the number of physically maimed persons in society. Although compensation became the explicit norm in Roman, Jewish and medieval law, there also is evidence for it in the laws of Hammurabi (for example, laws ❡❡ 203–204), and it dominates the relevant sections of the laws of Eshnunna (laws ❡❡ 42–48, 55–57), Babylonian laws only slightly earlier than Hammurabi. It is likely that compensation, either set by law or negotiated between the relevant parties, was always an option available to the injured party.

The purpose of laws of retaliation originally may have been to curtail excessive vengeance by or on behalf of a wronged party that would have provoked a spiral of retaliatory attacks. These laws set a just balance: an eye for an eye, or compensation determined to be equivalent. Additionally, the law may have been meant to deter prospective perpetrators by drawing attention to the personal cost of actions that cause injury. Literal retaliation prompts you to value my eye (or other body part, or life, or child, or whatever) as much as you value your own. If you would not deliberately remove your own eye, then do not deliberately remove mine, else I demand yours of you; and as you would guard against negligently losing your own eye, so you should equally guard against negligently losing mine, else I demand yours of you.

In ancient and medieval societies justice was usually not impartial; it graded punishments and compensation according to the social statuses of the perpetrator and the victim. So, for example, in the laws of Hammurabi, if an awīlu (a high-status person) blinded the eye of a fellow awīlu, then the penalty was the blinding of his own eye. However, if he blinded the eye of a commoner, then fixed monetary compensation was paid. Should an awīlu blind the eye of a slave, a lesser fixed monetary compensation was due, apparently to the slave owner (laws ❡❡ 196, 198–199; compare Exod. 21:26, where the blinded slave is allowed to go free, thus compensating the slave, but in common with Hammurabi, the higher-status perpetrator is not blinded). Laws of retaliation reflected and served to reinforce status distinctions in society, and thus protected the honor of high-status individuals. Certain individuals, their family members, their body parts, and their pain, were simply worth more than lower-status individuals under the law.

The developing polity, as a law-making body, assumed the role earlier performed by the extended kin group to regulate retaliatory punishments and to maintain the social status–honor regime. In modern western law, tort law regulated by the state-appointed courts has replaced retaliation, and covers a myriad of “injuries” for which one can seek redress, although the determination of just pecuniary compensation that dominates tort law obviously has roots in its ancient and medieval counterpart. “Retaliation” still features in current U.S. law in respect to employment. “Unlawful retaliation” pertains to actions taken by an employer that discriminate against an employee under the provisions of Title VII of the Civil Rights Act of 1964. If, for example, an employee makes a claim or supports the claim of a fellow worker in respect to discrimination or harassment in the workplace based on the Civil Rights Act, the employer cannot retaliate against the employee to materially adversely affect the employee in terms or conditions of employment (section 704(a) of Title VII). The Supreme Court’s 2006 decision in Burlington Northern and Santa Fe Railway v. White has significantly lowered the standard claimants must prove to win a retaliation claim. If proven to have retaliated, the employer is liable to pay a court-determined amount in compensation to the harmed employee.

Although laws of retaliation, and tort law generally, focus on individuals, the concept of retaliation has found a distinctively communal application in certain modern contexts. In international relations, for example, the nuclear arms race between the United States and the Soviet Union during the cold war moved the superpowers toward mutually assured destruction. Each developed the capability to destroy the other by launching a retaliatory strike after absorbing a first strike. Nuclear deterrence theory was predicated on the notion that the credible prospect of retaliation should act as a deterrent to a prospective perpetrator.

A second area featuring a communal conception of retaliation is international trade. In this context, trade protection by one nation can issue in trade retaliation by a trading partner, sanctioned by an international body such as the World Trade Organization (WTO). The retaliation might be of a literal kind: a tariff imposed on some good(s) to counteract a tariff imposed by the trading partner, and according to the WTO Dispute Settlement Understanding, the countermeasures should be “equivalent to the level of nullification and impairment” (Article 22.4). That is, the penalty should justly balance the infringement. The point of the retaliation is only partly to obtain compensation for the financial harm caused by protectionist policies of a trading partner. It actually seeks to pressure the protectionist trader to abandon its practices and comply with its WTO commitments. Here retaliation serves mainly as a mechanism to get a party to modify its behavior, but it also serves to warn potential perpetrators because there is a sanctioned retaliatory response.

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